The rules will enter into force on 1 July 2017. The new regulations require all companies regularly employing five or more employees to have a written whistleblowing policy. The regulation contains minimum requirements for the content of such policies. The new rules imply that more undertakings will have to establish routines for internal notification, and already existing policies should be reviewed.
What is new?
The new regulations are aimed to increase the protection of whistleblowers and make the rules on whistleblowing visible and more accessible to the employees. The rules are given a wider scope of application, and establish a more extensive obligation for employers' implementation of whistleblowing policies. The new rules imply the following main changes:
- All companies that regularly employ five or more employees shall have written whistleblowing policies.
- The written whistleblowing policies must comply with the minimum requirements provided by the Working Environment Act.
- Hired-in employees are given enhanced whistleblowing protection.
- Public authorities shall maintain professional secrecy concerning the identity of a whistleblower.
- The new rules are implemented in the new chapter 2A of the Working Environment Act.
Scope of application
From 1 July 2017, all undertakings that regularly employ five or more employees will be obliged to have written policies for internal whistleblowing. This is a significant change from the current regulations, which only require that whistleblowing policies are established "if the circumstances of the undertaking so indicate".
The new rules involve that more undertakings will be obliged to establish whistleblowing policies. Hired in personnel shall be included when the number of employees regularly employed in the undertaking are calculated.
The new rules also provide a better whistleblowing protection to hired in employees. Hired in employees shall be entitled to notify concerning censurable conditions with the hirer in, and shall have the same protection against retaliation in connection with such notification as permanent employees. Pursuant to the current legislation hired in employees only enjoy such protection in relation to their own employer.
The whistleblowing policies must be in writing and shall be available to all the employees in the company. The new rules also require that the policies shall be established "in co-operation with the employees and their elected representatives".
Furthermore, the new rules provide minimum requirements for the content of the whistleblowing policies. The policies shall include:
- An explicit encouragement to notify concerning censurable conditions at the undertaking.
- The procedure for internal notification, including a description of how a notification can be submitted and who the notification shall be submitted to.
- The procedure for receipt, handling and following up of internal notifications: The policies shall describe how internal notifications will and shall be handled, and name the person(s) responsible for handling internal notifications.
Protection of whistleblowers
Employees are protected against retaliation in connection with notifications concerning censurable conditions at the undertaking. This protection is maintained under the new rules, but is also extended to include hired in employees.
Furthermore, the protection of whistleblowers are strengthen by new rules of professional secrecy. Supervisory authorities and other public authorities that receive notifications concerning censurable conditions, shall ensure that only the persons working with the relevant case have access to the whistleblower's name or other information identifying the whistleblower. This means that when notification is submitted to public authorities, the parties of the whistleblowing case – including the employer – will not be entitled to know the name of the whistleblower.
The obligations under the new rules apply to all undertakings that regularly employ five or more employees, and concern the majority of Norwegian undertakings.
We recommend that undertakings that do not have policies for internal notification establish such policies as soon as possible to avoid orders from public authorities. The policy should be established in cooperation with the employees and their elected representatives. Undertakings that already have established whistleblowing policies should review these to make sure that they are compliant with the minimum requirements provided by law. The review should be carried out in cooperation with the employees and their elected representatives.